Todd v. State, 95-1357
| Citation | 659 So.2d 1350 |
| Decision Date | 08 September 1995 |
| Docket Number | No. 95-1357,95-1357 |
| Parties | 20 Fla. L. Weekly D2057 Michael Lenard TODD, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Michael Lenard Todd, Avon Park, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Steven J. Guardiano, Sr. Assistant Attorney General, Daytona Beach, for appellee.
Michael Lenard Todd claims that the trial court erred by denying his motion to correct an illegal sentence pursuant to Rule 3.800(a), Florida Rules of Criminal Procedure. In support of the motion he alleged that the sentencing court imposed a three year mandatory minimum for carrying a firearm during the attempted robbery, but that it was not he, but his co-defendant, who possessed the firearm.
If Todd's assertion, that he did not personally possess a firearm during the commission of the crime, is correct, the minimum mandatory term should not have been imposed. See Earnest v. State, 351 So.2d 957 (Fla.1977).
The trial court attached only a copy of Todd's plea in support of Todd's denial. The court also should have attached a copy of some portion of the original record indicating that Todd's allegation was erroneous. See Poiteer v. State, 627 So.2d 526, (Fla. 2d DCA 1993) (); Bell v. State, 589 So.2d 1374 (Fla. 1st DCA 1991) (). Contra Young v. State, 616 So.2d 1133 (Fla. 3d DCA 1993) ().
We vacate the order denying the motion and remand for the trial court to delete the minimum mandatory or attach to its order portions of the record demonstrating a factual basis for the plea to the minimum mandatory.
ORDER VACATED; REMANDED.
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...be brought by motion under rule 3.850 and not rule 3.800(a)). Another district, however, agrees with our approach. See Todd v. State, 659 So.2d 1350 (Fla. 5th DCA 1995) (citing Poiteer in support of vacating trial court's denial of rule 3.800(a) motion alleging no factual basis to support i......
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